ABC FOI 201920 010 Decision 1590190 1.PDF.pdf

31 January 2020

P Johns

E) xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear P Johns,

FOI REQUEST – REFERENCE NUMBER ABC FOI 201920-010

I refer your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) in
your email of 31 July 2019. You sought access to the fol owing documents:

“A copy of all John Lyons messages sent and received from the device he used to tweet during the AFP
search warrant at the ABC HQ. I am requesting all messages on any platform for the duration of the
warrant execution and for 2 hours after.”
Locating and identifying documents
Reasonable steps were taken to identify and locate al  documents in scope of your request. The search
for documents included contacting the Executive Manager ABC News, Analysis & Investigations who
consulted with John Lyons in order to retrieve al  documents in scope of your request.

As a result of that consultation, and after duplicate emails were withdrawn from the bundle, 63
documents were identified as fal ing within the scope of your request and were assessed against the FOI
Act for release.

Authorisation

I am authorised by the Managing Director under Section 23 of the FOI Act to make decisions in respect
of requests made under that Act. Fol owing is my decision in relation to your request.

Material taken into account

In making my decision I have had regard to:

•  the terms of your request
•  the content of the documents identified as relevant to your request
•  the FOI Act
•  guidelines issued by the Office of the Australian information Commissioner under section 93A of the
FOI Act (the Guidelines).

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Decision

Access is granted in ful  to 15 documents. Access is granted in part to 28 documents. Access is refused to
20 documents. My reasons for refusal of access are provided in the section Reasons for decision and a
schedule of the documents is available at Appendix A.

Release of documents

Section 22 of the FOI Act al ows access to be granted to an edited copy of a document if it is reasonably
practicable to remove irrelevant material, or material found to be exempt from disclosure under the FOI
Act. Accordingly, redactions have been applied to documents to which access has been granted in part,
in order to release the document to you.

Documents to which you have been granted access are attached to the email containing this decision.

Reasons for decision

Section 7(2) (program material)

The ABC is specifical y excluded from the operation of the FOI Act in relation to its program material,
and documents in relation to its program material, by virtue of Section 7(2) and Division 1 of Part II of
Schedule 2 of the FOI Act.

'Program material' is not defined in the FOI Act. However, it has been the subject of judicial
consideration. The FOI Guidelines issued by the Australian Information Commissioner (the Guidelines)
summarise this case law at paragraph 2.16:

The exemption for ‘program material’ of the ABC and SBS has been considered in Federal
Court,1  AAT2 and IC review cases.3 Australian Broadcasting Corporation and Herald and Weekly Times

Pty Limited, the AAT held that program material means a document ‘which is the program and

all versions of the whole or any part of the program, any transmission broadcast or publication

of the program, and includes a document of any content or form embodied in the program and

any document acquired or created for the purpose of creating the program, whether or not

incorporated into the complete program’.4

When it comes to documents ‘in relation to’ program material, the Guidelines adopt the ‘reasonably
direct relationship’ test in ABC and HWT.5 I consider this the correct approach, i.e. that the ABC
exemption applies to documents comprising ‘program material’ in the sense described above, as wel  as
documents which have a reasonably direct relationship with that program material. The Guidelines
contrast ‘reasonably direct’ with a connection that is “indirect, remote or tenuous”.6 I have taken the
same approach.

I have found that 19 full documents and part of 1 document you have requested are, or have a direct
relationship to, ‘program material’. The documents comprise exchanges between Mr Lyons and other

1 See Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; and Bell v Commonwealth Scientific
and Industrial Research Organisation [2008] FCAFC 40.
2 Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited [2012] AATA 914
3 Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AICmr 7; ‘F’ and Australian Broadcasting
Corporation [2012] AICmr 8; ‘ER’ and Special Broadcasting Service [2015] AICmr 12; and Fist and Australian Broadcasting
Corporation [2014] AICmr 14.
4 [2012] AATA 914 [57].
5 [2.16]
6 OAIC Guidelines, [2.16]

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ABC staff that are directly related to ABC programming, in Mr Lyons’ capacity as Head of Investigative &
In-depth Journalism and also as a potential subject for interview on ABC stories related to the AFP raid
of 5 June.

I consider that these documents were created directly and solely for the purposes of creating ABC
program material. The documents are therefore clearly material that was “acquired or created for the
purpose of creating the program”. The ABC is exempt from the operation of the FOI Act in relation to
any such document, and on that basis, access is refused under section 7(2).

Section 42 – legal professional privilege

Access to 1 whole document and part of 1 document is refused under section 42 of the FOI Act.
Section 42 exempts from disclosure material that would be privileged from production in legal
proceedings on the ground of legal professional privilege.

The Guidelines explain at [5.129]:

“At common law, determining whether a communication is privileged requires a consideration of:
•  whether there is a legal adviser‐client relationship
•  whether the communication was for the purpose of giving or receiving legal advice, or use in
      connection with actual or anticipated litigation
•  whether the advice given is independent
•  whether the advice given is confidential.”

I am satisfied that the common law test for whether legal professional privilege exists has been met in
this case. The documents in question involve the requesting and providing of advice by ABC Legal
practitioners in their role as independent advisors to the ABC, regarding legal issues surrounding the
creation of ABC programming about the AFP raid. The documents are considered confidential and
privileged, and the ABC has not waived that privilege. The privileged information in the documents is
exempt from release under section 42 of the FOI Act and access is therefore refused.

Section 47F – personal privacy

Access to parts of 27 documents is refused on the basis those parts are exempt under section 47F of the
FOI Act: that is, release of that material would involve the unreasonable disclosure of personal
information.

In making this decision I have considered firstly whether the documents contain personal information,
and secondly whether it would be unreasonable to disclose that information. In my view, each of the
elements of the conditional exemption in section 47F are met.

For the purposes of the FOI Act ‘personal information’ has the same meaning as the Privacy Act 1988.
Paraphrased, it is information about an identifiable individual.

The relevant documents contain either the mobile phone numbers of ABC staff, or the names and
contact details of other individuals operating external y to the ABC. Paragraph 6.130 of the Guidelines
states that, “Personal information can include a person’s name, address, telephone number, date of
birth, medical records, bank account details, taxation information and signature.” I am satisfied that
mobile phone numbers and the names and contact details of people who are not employed by the ABC
are personal information for the purposes of section 47F.

I have considered whether it would be unreasonable to disclose the personal information contained in
the documents. I have had regard to the factors listed in section 47F(2), specifical y the extent to which
the information is well known, whether the person to whom the information relates is known to be (or

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to have been) associated with the matters dealt with in the document, and the availability of the
information from publicly accessible sources.

On each occasion the information is not publicly known, nor known to more than a small group of
people. With regard to affected external parties, reasonable attempts at consultation with those parties
was undertaken and I have concluded that unless otherwise explicitly stated by a party – i.e. they are
happy for certain personal information to be known – general y the persons involved hold, or would
likely hold, opposition to the release of the material.

In my view it would be unreasonable to disclose the information having regard to the concerned
individuals’ privacy and the lack of relevance of the information to the substantive matter contained in
the documents. I am satisfied that the personal information contained in the documents is conditional y
exempt from disclosure under section 47F of the FOI Act.

Public interest test

Section 11A(5) of the FOI Act requires the ABC to provide access to a conditional y exempt document
unless, in the circumstances, access to the document would, on balance, be contrary to the public
interest.
I have had regard to the factors set out in section 11B of the FOI Act which favour disclosure, specifical y
whether disclosure would promote the objects of the FOI Act, inform debate on a matter of public
importance, promote effective oversight of public expenditure, or al ow a person to access his or her
personal information.
I consider there is negligible public interest in the disclosure of the personal information. The
information is not of serious concern or benefit to the public, nor related to matters of the public’s
common concern. I also note that the personal information contained in the documents has no direct,
demonstrable relevance to the affairs of government.
I consider the public interest in maintaining individuals’ privacy, in circumstances where al relevant
information has been relayed via release, outweighs any public interest in disclosure. Accordingly, the
relevant information in the documents is exempt under section 47F of the FOI Act.
Review rights

You have rights in relation to this decision. Those rights are set out in Annexure A to this decision.

Yours sincerely,

Connie Carnabuci
ABC General Counsel & FOI Coordinator
xxx.xxx@xxx.xxx.xx

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Appendix A – Schedule of documents
  Doc
Description
Time
Pages
Decision  Refusal
#
Reason
1
The Australian email newsletter
11:50AM  2
Release

2
New York Times email
11:58AM  1
Partial
47F
3
AFP Media email
12:08PM  1
Release

4
The Project email
12:23PM  1
Partial
47F
5
ABC internal email + attachment
12:29PM  1+8
Release

6
Text message New York Times
12:29PM  1
Partial
47F
7
ABC internal email
12:38PM  1
Refuse
PM
8
ABC internal email
1:00PM
1
Refuse
PM
9
Ben Fordham Show email; ABC internal email
1:04PM
2
Partial
47F
thread
10
ABC internal email
1:09PM
1
Partial
47F
11
ABC internal email thread
1:21PM
1
Refuse
PM
12
Text message thread The Walkley Foundation
1:21PM
1
Partial
47F
13
ABC internal email
2:00PM
1
Refuse
PM
14
ABC internal email
2:11PM
1
Release

15
ABC internal email
2:26PM
1
Refuse
PM
16
Radio New Zealand email to John Lyons
2:34PM
1
Partial
47F
17
ABC internal email thread
2:53PM
1
Refuse
PM
18
External email
2:55PM
1
Partial
47F
19
ABC internal email
3:02PM
1
Partial
47F
20
ABC internal email
3:05PM
1
Refuse
PM
21
Text message
3:12PM
1
Refuse
PM
22
ABC internal email thread
3:15PM
1
Release

23
ABC internal email
3:18PM
1
Refuse
PM
24
ABC internal email
4:19PM
3+10
Refuse
PM
25
Email with link to attachment
4:23PM
1+video  Refuse
PM
26
External email
4:23PM
1
Partial
47F
27
Text message chain The Australian
4:25PM
1
Partial
47F
28
The Australian email newsletter
4:33PM
6
Release

29
AFP Media email to ABC, forward to internal ABC
4:37PM
1
Release

30
ABC internal email
4:37PM
1
Partial
47F
31
National Press Club email; ABC internal email
4:59PM
2
Release

32
ABC internal email thread
5:04PM
2
Refuse
42
33
BBC email
5:22PM
1
Partial
47F
34
Frontiers Press email
5:40PM
3
Release

35
ABC internal email thread with attachment
5:42PM
2+1
Release

36
Internal ABC text message chain
5:46PM
2
Partial
PM, 47F

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37
ABC internal email thread
5:48PM
1
Release

38
External email
5:49PM
1
Partial
47F
39
ABC internal email thread
5:54PM
2
Release

40
The Walkley Foundation email
5:57PM
2
Partial
47F
41
ABC internal email
6:07PM
1+2
Refuse
PM
42
ABC internal email
6:12PM
1
Partial
47F
43
Text message thread SMH
6:15PM
1
Partial
47F
44
ABC internal email thread
6:23PM
1
Refuse
PM
45
ABC internal email thread
6:32PM
1
Release

46
ABC internal email thread
6:39PM
2
Release

47
ABC internal email thread
6:40PM
1
Refuse
PM
48
ABC internal email + attachment
6:43PM
1+1
Release

49
ABC internal email
6:47PM
1
Partial
47F
50
Text message thread Sky News
6:49PM
1
Partial
47F
51
ABC internal email thread
7:08PM
1
Refuse
PM
52
ABC internal email thread
7:08PM
1
Partial
42 / 47F
53
Channel 4 News email
7:29PM
1
Partial
47F
54
Euronews-NBC newsdesk email
7:38PM
1
Partial
47F
55
Internal ABC text message thread
7:39PM
2
Refuse
PM
56
BBC News World Service email
7:40PM
1
Partial
47F
57
Dutch Public Radio VPRO email
8:02PM
1
Partial
47F
58
ABC internal email
8:21PM
1
Refuse
PM
59
ABC internal email
9:41PM
2
Refuse
PM
60
ABC internal email
9:42PM
2
Partial
47F
61
ABC internal email thread
9:44PM
2
Refuse
PM
62
Text message thread Nine News
10:14PM  1
Partial
47F
63
Columbia Journalism Review email newsletter; ABC  10:18PM  7
Release

internal email

PM – Program material: exempt from the operation of the FOI Act under section 7(2)
42 –  Legal professional privilege exemption
47F – Personal privacy conditional exemption


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Annexure A – Review rights
If you are dissatisfied with this decision you can apply for Internal or Information Commissioner (IC) Review. You do
not have to apply for Internal Review before seeking IC Review.
Application for Internal Review
You have the right to apply for an internal review of the decision refusing to grant access to documents in
accordance with your request. If you make an application for review, the Managing Director wil  appoint an officer
of the Corporation (not the person who made the initial decision) to conduct a review and make a completely fresh
decision on the merits of the case.
You must apply in writing for a review of the decision within 30 days of receipt of this letter. No particular form is
required to apply for review, although it would help if you set out the reasons for review in your application.
Application for a review of the decision should be addressed to:
The FOI Coordinator
ABC
Level 13
700 Harris Street
ULTIMO NSW 2007
Or sent to: xxx.xxx@xxx.xxx.xx
Application for Information Commissioner (IC) Review
Alternatively, you have the right to apply for a review by the Information Commissioner of the decision refusing to
grant access to documents in accordance with your request. Your application must:
•  be in writing
•  be made within 60 days of receipt of this letter
•  give details of how notices may be sent to you (for instance, by providing an email address)
•  include a copy of the decision for which a review sought.
You should be aware that the Information Commissioner has a discretion not to undertake a review (see Division 5,
FOI Act).
Please refer to the OAIC website FOI review process page for further information and/or to access the online form
for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/foi-review-process
Application for a review of the decision by the Information Commissioner should be addressed to:
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
Or sent to: xxxxxxxxx@xxxx.xxx.xx
Complaints to the Information Commissioner
You may complain to the Information Commissioner about any action taken by the ABC in the performance of
functions, or exercise of powers, under the FOI Act. The Information Commissioner may make inquiries for the
purpose of determining whether or not to investigate a complaint.
Complaints should be made in writing to the fol owing address:
Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001

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